Under the 21st Century Cures Act, providers will be prohibited from interfering with the access, exchange or use of electronic health information. A response to information-blocking tactics, these provisions pose many questions from mental health providers.
It’s Up to Mental Health Providers to Know CURES ACT Provisions
Throughout the history of technology, there has always been competition that’s inspired innovation. Unfortunately, that competition has also inspired cut-throat, win-at-all-costs tactics that end with less-than-optimal outcomes.
During the 1880s, it was Nikola Tesla vs. Thomas Edison. Tesla’s superior alternating electric current lost out to Edison’s superior marketing campaigns for direct-current electricity.
Beginning in the 1970s, it was Steve Jobs and Apple vs. Bill Gates and Microsoft – a decades-long, love-hate relationship that often found the two tech giants trying to undermine one other.
Today it’s electronic health records vs. information blocking, beset by an unwillingness among some providers and vendors to share – or enable the interoperable sharing of – EHRs in order to gain a competitive edge, often at the expense of patient care and outcomes.
That’s where the Cures Act enters the picture.
The primary objective of its provisions is to put patients first by knocking down barriers that information blocking poses to the collaborative sharing of EHR. That means increasing patients’ access to their own health records in order to:
- Improve transparency of the cost of care
- Improve care outcomes
- Increase provider competition
- Make better use of health technology, including ePHI access through smartphone apps
Properly interpreting the Cures Act provisions – and understanding when exceptions to those provisions are applicable – is the responsibility of providers. In other words, decisions about whether patients are or aren’t granted access to their own records can’t be randomly relegated to whoever happens to be fielding calls at the front desk.
Q&A: What You Should Know As Providers
For mental health providers, all of this change comes with questions about what they will and won’t be allowed or required to do. Here we attempt to anticipate and answer many of those questions for you.
1. What are the deadlines regarding Information Blocking?
- April 5, 2021: Clinical notes must be shared by health systems.
- Oct. 6, 2022: Clinical notes must be shared with a patient’s third-party application that may be downloaded to a smartphone or other device.
2. Does protected health information (PHI) apply the same to psychiatrists as it does to all other healthcare providers under HIPAA Privacy Rules?
- Not when it comes to psychotherapy notes. Those notes are afforded special protections.
3. What is the accepted definition of “psychotherapy notes” as they pertain to HIPAA Privacy Rules?
- Notes recorded in any medium by healthcare providers who are mental health professionals and who document or analyze the content of conversations during private counseling sessions – or in group, joint or family counseling sessions – and are separate from the rest of the patient’s medical record.
4. Can I withhold my psychotherapy notes from my patients?
- Yes, IF those notes are separated from the rest of an individual’s medical records and IF those notes are recorded by a healthcare provider who is a mental health professional who documents or analyzes the content of conversations during private counseling sessions or a group, joint, or family counseling sessions.
5. Which notes MUST I make accessible to my patients and other providers and organizations?
- Consultation notes
- Discharge summary notes
- History and physical
- Imaging narratives
- Pathology report narratives
- Procedure notes
- Medication prescription and monitoring
- Counseling session start and stop times
- Modalities and frequencies of treatment furnished
- Results of clinical tests
- Summaries of diagnosis, functional status, treatment plans, symptoms, prognosis, and/or progress to date
6. What about psychotherapy notes taken during sessions that are conducted by mental health professionals other than psychiatrists? Can those notes be withheld, too?
- It depends. But basically, psychotherapy notes are psychotherapy notes as long as they adhere to the definition spelled out in 45 CFR 164.501 of the HIPAA Rules. (See No. 3 above.)
7. Does it matter whether the psychotherapy notes were written by a healthcare provider or a mental health provider?
- As it applies to information blocking regulations, not really. The regulations make no distinction between kinds of providers. But be sure to update your policies to reflect your chosen practices.
8. So, are “psychotherapy notes” for the purpose of the HIPAA Rules the same as “psychotherapy notes” for the purpose of the information blocking regulations under 45 CFR Part 171?
- Yes. And they’re excluded from the definition of EHI for the purposes of information blocking regulations.
9. Does mental health information (or progress notes) qualify for the same information blocking exceptions as psychotherapy notes?
- No. Psychotherapy notes get preferential treatment because they contain particularly sensitive information and because they are considered to be the personal notes of the therapist. These are typically allowed to be shared only with authorization from the patient. Conversely, the very nature of progress notes is that they be shared with other healthcare workers as an interoperable part of the patient’s treatment plan. Therefore, no exception.
10. If a provider’s psychotherapy notes are mingled with other notes or medical records, can the provider separate out and protect the psychotherapy notes?
- Yes.
11. How much time will providers be given to separate out the psychotherapy notes?
- Under HIPAA rules, providers have 30 days to provide the records. A provider should have policies and procedures in place to facilitate their workflow for producing records in a timely basis.
12. In general, will providers be required to make patient records immediately available through the patient portal, or will the patient first need to make a request for those records?
- In general, the spirit of the Cures Act encourages immediate access, but the rollout of portal export and consumer applications goes into effect on December 31, 2023. Providers should consult with their IT, legal, and compliance support about how they will manage record requests. Also, understand that any attempt to artificially restrict or otherwise influence the scope of the information may constitute interference and could be subject to information blocking regulations and penalties.
13. What about electronic PHI that’s generated before the Oct. 6, 2022 deadline? Do the new rules apply to those notes and records, too?
- Yes. The rule might be new, but it applies to all ePHI pre-dating the deadline.
Compliant With The Cures Act? Qualifacts’ InSync Healthcare Solutions Can Help
Naturally, there’s a lot of information to absorb with the new Cures Act – and that includes eight important exceptions and conditions tied to those exceptions that you should know. But there’s also a strong desire to be compliant with all of the act’s new rules and regulations.
Fortunately, Qualifacts’ InSync Healthcare Solutions is already HIPAA-compliant with the Open Notes rule. Our EHR software is equipped to provide controlled configuration of notes to your patients through the patient portal.
Better yet, the InSync EHR system can be configured to display specific data and encounter details to patients!
At Qualifacts’ InSync, we continually monitor government mandates and always keep our electronic health and medical records software updated and fully integrated, bringing your medical practice the latest in practice management and medical billing technologies.
For a closer look at how EHR software from Qualifacts’ InSync Healthcare Solutions can support your efforts to become more compliant with the new information blocking mandates, schedule a demo with one of our experts who’d be happy to field any questions you might have.
